Saporita v. Litner

• Decision Date: 31 December 1976
• Parties: Carmelia M. SAPORITA v. Sidney H. LITNER, Executor.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 809

358 N.E.2d 809

371 Mass. 607

Carmelia M. SAPORITA

v. Sidney H. LITNER, Executor.

Supreme Judicial Court of Massachusetts.

Argued Oct. 9, 1975.

Decided Dec. 31, 1976.

Andrew F. Lane, Boston (John D. Hanify, Boston, with him), for defendant.

Joseph J. Hurley, Boston, for plaintiff.

Before REARDON, QUIRICO, BRAUCHER and WILKINS, JJ.

QUIRICO, Justice.

This is an action in contract for compensation for services allegedly rendered by the plaintiff to the defendant's testator over the period of eighteen years prior to the testator's death in 1963. Judgment was entered for the plaintiff in the amount of $74,921.18. The case is before us on three bills of exceptions filed by the defendant. The basic issue raised by the exceptions is whether the court acquired and properly exercised personal jurisdiction over the defendant as executor under the testator's will in light of the undisputed fact that he held his appointment by order of a Connecticut probate court. ¹ We hold that in the particular circumstances of this case the court acquired and properly exercised personal jurisdiction.

We set forth the rather lengthy procedural history of the case.

The plaintiff sought to commence the action by a writ dated July 16, 1964, which recited that the defendant had a usual place of business in Boston and was the executor of the estate of James Stewart Rooney, late of Boston. After several unsuccessful attempts at service, the deputy sheriff served the defendant in hand on December 23, 1964, in Massachusetts. The defendant filed a special appearance. He also filed a plea in abatement alleging that the testator was domiciled in Connecticut on the date of his death; that the defendant had been appointed executor under the testator's will by a Connecticut probate court; that the defendant had not been appointed the testator's legal representative in Massachusetts; that the testator owned no real estate in Massachusetts; and that the defendant, as executor under the testator's will, was subject to suit only in Connecticut. In addition the defendant filed a special demand for proof under G.L. c. 231, § 30, calling on the plaintiff to prove that the defendant was an executor. After a hearing thereon a judge of the Superior Court overruled the plea in abatement on February 10, 1966. The defendant excepted to the ruling and to the admission at the hearing of evidence that the testator was domiciled in Massachusetts prior to and at the time of his death. He then filed his first bill of exceptions.

With the permission of the trial court the defendant, on March 4, 1966, filed his answer denying the allegations in the complaint and repeating the allegations in the plea in abatement. On October 21, 1968, the defendant, by leave of court, amended his answer by raising the statute of frauds (G.L. c. 259, §§ 1 and 5), and the statute of limitations (G.L. c. 260, §§ 2 and 9). ² On October 8, 1968, the case was referred to an auditor whose findings were not to be final. The auditor, after a hearing, filed his report on March 12, 1969. He made extensive subsidiary findings, on the basis of which he concluded that the testator had agreed to leave the plaintiff one-half his estate in his will if she would work for him full time, that he failed to make any provision for her in his will, and that the plaintiff was entitled to payment for work she had performed for him pursuant to an oral employment agreement they had made in 1945. He further concluded that the plaintiff had fully performed her part of the agreement but the testator had not, that the testator had violated his agreement and that the plaintiff was entitled to recover $74,921.18 for the services rendered by her.

The plaintiff, on January 15, 1971, moved for an order of notice for service on the defendant under the long arm statute, G.L. c. 223A, which took effect on August 24, 1968. See Kagan v. United Vacuum Appliance Corp., 357 Mass. 680, 682, 260 N.E.2d 208 (1970). The motion was allowed and the order of notice issued. On February 6, 1971, the notice was served by registered mail on the judge of the Connecticut probate court where the will was being probated; on February 8, 1971, it was served on the defendant by registered mail. The defendant excepted to the allowance of the motion and filed his second bill of exceptions.

On January 27, 1972, a judge of the Superior Court denied the defendant's motion (filed on October 23, 1970), wherein he sought to amend his answer so as to allege that the plaintiff's action was barred by the short statute of limitations, G.L. c. 197, § 9, and, alternatively, that the plaintiff's claim was barred because it was not filed within the time allowed by the probate court in Connecticut under Connecticut law. The defendant filed a claim of exception, but failed to file a bill of exceptions.

In April, 1972, trial was held before a judge of the Superior Court sitting without a jury. The plaintiff offered the auditor's report and rested. The defendant filed a motion to amend his answer to allege that the plaintiff had not filed her claim within the time limited by the probate court in Connecticut for exhibiting claims as required by § 45--205 of the Connecticut General Statutes (1975). The defendant also filed a motion to strike the auditor's report on the ground that the court lacked jurisdiction. ³ Both motions were taken under advisement. The defendant introduced the testator's will. He also introduced documentary evidence showing that a Suffolk County public administrator had been appointed administrator of the testator's estate on July 30, 1964; that the public administrator found no assets belonging to the testator; and that on August 3, 1971, a judge of the Probate Court for Suffolk County allowed the public administrator's first and final account. The defendant offered no other evidence. He then filed ten requests for rulings. The issues sought to be raised by the requests were (a) whether the defendant could be held liable as executor where he was not appointed executor in Massachusetts; (b) whether the order of notice under G.L. c. 223A, the long arm statute, was properly issued and served; and (c) whether the plaintiff's claim was barred because of her failure to exhibit her claim in Connecticut in accordance with the provisions of the Connecticut nonclaim statute.

On October 12, 1972, the court denied the defendant's motion to amend the answer and his motion to strike the auditor's report, denied the defendant's requests for rulings, and ordered judgment for the plaintiff on the auditor's report. The defendant excepted to these actions and filed his third bill of exceptions.

We summarize those facts found by the auditor material to the fundamental issue whether the court had properly exercised personal jurisdiction over the defendant as executor under the will of the testator even though he was appointed by a Connecticut probate court.

From 1944 to 1946, the testator, a graduate of Harvard Medical School, served as executive officer at the United States Naval hospital in Springfield. From 1946, when the testator was released from military service, until 1956, he was associated as a pathologist with many Massachusetts hospitals, did work for many insurance companies and other corporations, and served as an expert witness. In 1956 he gave up his consulting work with all but one hospital, but continued his work as an expert witness. The testator's medical and consulting practice, to the date of his death of July 16, 1963, was conducted entirely in Massachusetts. During the period 1946 to the date of his death, he lived at various addresses in Cambridge and Boston. In 1948 he acquired a farm in Vermont, where his wife and son lived. He sold the farm and in 1958 purchased a house in Connecticut. As long as the testator was physically able to travel, he visited his wife and son on weekends at the Vermont farm and the Connecticut house. He spent seventy-five per cent of each week in Boston. From some time in the early 1940's until his death the testator owned an automobile, registered in Massachusetts and garaged in Boston. All the testator's stock dealings and investments were made with brokers in and around Boston. Some accounts were for stock held jointly by the testator and his wife and listed both Massachusetts and Connecticut addresses; stock in the testator's account carried the Connecticut address. In 1958 the testator registered to vote in Connecticut and voted once, in 1960. The testator considered Boston his home, for it was there that he lived, had his business, and had his friends. The Connecticut house was for his wife and son, who had not lived with the testator in the Boston area since 1956. Funeral services for the testator were held in Boston, and he was cremated there.

The plaintiff met the testator in 1944 at the Naval hospital in Springfield where she was employed as a secretary. In August, 1945, the testator and the plaintiff entered into an oral agreement whereby the plaintiff would resign her employment and become personal secretary to the testator, who expected to be released from the Navy almost immediately enabling him to return to private practice in Boston. The parties agreed to all material terms of employment. From October, 1945, until January, 1948, the plaintiff worked part time for the testator while employed full time in other positions in the Boston area. The testator did not pay her for this work. In the summer of 1946, after the testator's release from the military service, the plaintiff asked for her pay, and the testator replied she would get her money. In January, 1948, the plaintiff became employed full time as the testator's secretary at an amount less than agreed. About this time the testator agreed that he would pay her the money he owed under the 1945 agreement. In March, 1949, the plaintiff took another full-time position but continued to work for the testator on a...